The New York Sun reports an amazing showdown now playing out in a federal court in Virginia:

A constitutional clash is looming in a Virginia courtroom after federal prosecutors proposed barring the public from hearing some evidence at the upcoming trial of two former lobbyists for the American Israel Public Affairs Committee [who are accused of conspiring to pass classified information to an Israeli official and to reporters]. Defense lawyers for the two men, Steven Rosen and Keith Weissman, have objected vigorously to the unusual proposal to present secret evidence. Late yesterday afternoon, a consortium of news organizations filed a motion to intervene in the case to restrain any attempt by the government to give the jury access to evidence that the public will not be permitted to examine.. . . .A source familiar with the case said the government proposed giving jurors headphones to listen to audio recordings of intercepted and wiretapped phone conversations key to the case. While the defendants and the judge would be able to hear the audio, the press and public would not, the source said.. . . .Attorneys not involved in the case said they were perplexed by some aspects of the government's proposal. It was unclear, for instance, what jurors would be told about the classified information, whether they would be sworn to secrecy for life, and whether they would be told of their obligations before the trial begins.

"I have a real problem with that," one defense lawyer, Eugene Fidell, said. "Jurors are not, in fact, privileged characters. They don't have security clearances. … It sounds to me like we're going down the path towards secret trials, which we don't have."

Lawyers for the two ex-lobbyists are expected to argue that special warnings to the jury about keeping evidence in the case secret could undercut the pair's defense, which includes an argument that the information disclosed by the men did not represent a threat to America or a potential boon to a foreign government.

It is worth comparing this trial to the Justice Department's successful attempt to persuade the Fourth Circuit to dismiss the lawsuit of Khalid el-Masri on the grounds that it involved state secrets. El-Masri is a German citizen who was held by the CIA for five months in Afghanistan because of mistaken identity. El-Masri says he was imprisoned, beaten and drugged by the CIA, then dumped in Albania when the CIA discovered that it had the wrong man.

In the AIPAC prosecution the government wants the right to try some of its case in secret on the grounds that evidence necessary to adjudicate the case is secret; in the el-Masri case it sought to avoid trial by claiming that evidence necessary to adjudicate the case is secret. Put another way, the government wants to use the need for secrecy to avoid public scrutiny when it brings suit and avoid public accountability when it is sued.

Certainly the government should be able to protect its secrets. And certainly the need for secrecy must occasionally outweigh other important social values. But the question I am interested in is whether the government should be able to leverage its need to keep things secret to simultaneously give itself an offensive advantage when it prosecutes and a defensive advantage when it seeks to avoid legal accountability for its own misdeeds.

In the el-Masri case, the government argued that even if el-Masri's claims were true, the need to protect government secrets prevented him from going forward to show that the government was responsible for kidnapping and torturing him. But why shouldn't the government's desire to protect secret material also mean that it must forgo some prosecutions it might otherwise wish to bring? (Or, in this case, merely bring a potentially weaker case than it would otherwise bring?) That is to say, if secrecy is the paramount value here, then it should trump both the interest of el-Masri in holding the government officials to account for their alleged illegal behavior and the interest of the government in holding the two AIPAC defendants to account for their alleged illegal behavior.

A familiar danger of excessive government secrecy is that it permits government to avoid accountability for its actions, undermining democracy and rule of law values. Taken together, the AIPAC and el-Masri cases place this familiar danger in a new light. If courts regularly defer to the government's claims of secrecy, the government will have incentives to pursue a heads-I- win-tails-you-lose policy-- stopping investigations into its own misconduct while limiting public scrutiny of its prosecutorial powers.

Actually, I find this compromise to allow the jurors doing the fact finding, but not the public and the enemy, to hear classified evidence to be an interesting gamble on the part of the government.

The public (not to mention our enemies) have no right to know classified information, so that part hardly bothers me.

However, the government is rolling the dice that the jurors will not disclose what they know after the trial in order to ensure these two defendants a fair jury trial.

It will be interesting to see if the Government is requiring some control mechanisms such as passing a background check or agreeing to sign a confidentiality agreement enforceable by criminal prosecution.

If a juror refuses to agree to those conditions, is that a strike for cause or one of the government's preemptories?

I'm actually a bit confused. My understanding was that the Classified Information Procedures Act was designed to address with these precise circumstances: the government wanting to introduce into a criminal trial evidence that is currently classified. There doesn't seem to be anything like what the government is proposing in that act. In fact, most of the procedures in the act appear to be fairly pointless if evidence can be introduced in a non-public way.

CIPA appears to strike this balance: if the government needs to use classified information to get a conviction, and can't find some sort of substitute that the judge accepts as substantially equivalent in terms of the defendant's constitutional right to put on a (valid) defense in a public trial, then the government must choose: either bite the bullet and release the information, or accept sanctions ranging from preclusion of evidence to dismissal of the indictment. The government never has to release evidence it doesn't want to - it just doesn't get to use that evidence against the defendant.

I recall this happening in the Iran/Contra trials, to several defendants' benefit. To be clear, I'm not saying I approve or disapprove of CIPA, only that it exists.

Raphael demonstrates the conundrum the government usually faces in these cases - release classified information to the enemy or give a deal to the agent of the enemy.

This is why some of our worst spies never see trial or the execution they richly deserve.

The usual techniques are to try to convince the spy to take a plea bargain to a jail sentence less than life or blackmail the spy by threatening to charge his family members with related crimes unless he accepts a life sentence.

The compromise the government is offering in this case to allow the Court, the defendant and the jury to hear the classified evidence seeks to get around that conundrum while still providing a fair trial. The public can still observe all the trial proceedings. They just can't listen to this portion of the evidence.

Bart, I don't necesarily disagree (although I have serious concerns and questions) with the premise that the public does not have a right to classified information, but, regardless, I will grant you this point for the purpose of discussion.

Accepting this idea means trusting the government implicitely to do the right thing and only classify those things that could materially harm our country. However, I am not sure if, even under the best of circumstances, say in a case where every single member of the nation trust the President in every case, we should be comfortable doing so.

I say this because there is an inherent benefit to for the government in overclassifying documents that need not be kept secret in order to prevent the disclosure of embarrassing or illegal activities. Thus, I don't see how we can ever trust out of hand that information that is classified should be. Indeed, there is ample historical evidence that the government has in many cases done just that (The Pentagon Papers being the most obvious and egregious example).

With all of that in mind I think that the public, and the courts should operate from a position of healthy skepticism whenever the government attmepts to use "State secrets" or some other similar rationale to escape litigation or public scrutiny.

Fancy that, "Bart" thinks that people ought to be executed even though they haven't been tried. "Sentence first -- verdict afterwards." Where have I heard that before?

The usual techniques are to try to convince the spy to take a plea bargain to a jail sentence less than life or blackmail the spy by threatening to charge his family members with related crimes unless he accepts a life sentence.

Accepting this idea means trusting the government implicitely to do the right thing and only classify those things that could materially harm our country.

So far as this trial goes, we do not have to trust the government to "do the right thing" because the judge, defendant and jury also get access to this information. I would be much more uneasy if the government cut out the defendant or the defendant and jury. In that case, you are attacking the basic constitutional rights to confront the evidence against you and to have a jury do the fact finding.

I will leave the subject of "over classification" to a future post on that subject.

I do agree with you, Bart, that in this case, there isn't a huge problem with the lack of transparency for the general public since all of the important parties in the case are seeing all of the evidence. However, that said, if you accept that the government can acheive their aim in protecting classified evidence by restricting public access to the information than you can't hope but disagree with the dismissal of the Khalid El-Masri lawsuit. Thus, I think that any way you slice it the government is unethically using one set of criteria for access to classified information when it suits their purpose to reveal it and one set when the information might be embarrassing or might opent them up to litigation.